State v. Harris

[Cite as State v. Harris, 2023-Ohio-506.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220251
TRIAL NO. B-1906789
Plaintiff-Appellee, :

vs. :
O P I N I O N.
LIONEL HARRIS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed As Modified

Date of Judgment Entry on Appeal: February 22, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Lionel Harris, pro se.
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BOCK, Judge.

{¶1} In this appeal, defendant-appellant Lionel Harris challenges the trial

court’s entry denying his motion to vacate court costs and fines. For the following

reasons, we recast his request to vacate his fines as a petition for postconviction relief

and affirm the trial court’s judgment as modified to reflect a dismissal of that petition

and his motion to vacate court costs.

I. Facts and Procedure

{¶2} In 1992, a jury convicted Harris and a codefendant of aggravated

murder. Initially, Harris’s case was assigned to Judge Nurre. Yet, Judge Schott, a

visiting judge, presided over Harris’s trial. At his sentencing hearing, Judge Schott

imposed a life sentence with parole eligibility and “$25,000 on both defendant[sic].”

The corresponding entry, signed by Judge Nurre on behalf of Judge Schott, stated:

Defendant is sentenced to be imprisoned in Department of Corrections

FOR A TERM OF LIFE.

(ELIGIBILITY FOR PAROLE IN TWENTY (20) YEARS)

PAY COSTS

($25,000.00 FINE)

{¶3} Through a series of original actions in this court, Harris has

unsuccessfully attempted to challenge the propriety of Judge Nurre’s entry. In 2013,

Harris petitioned this court for writs of mandamus and prohibition, arguing the entry

signed by Judge Nurre was void. See State ex rel. Harris v. Hamilton Cty. Court of

Common Pleas, 139 Ohio St.3d 149, 2014-Ohio-1612, 9 N.E.3d 1057, ¶ 2 (“Harris I”).

We dismissed the petitions. Id. at ¶ 1. The Ohio Supreme Court affirmed our dismissal

and characterized Judge Nurre’s entry as a nondiscretionary, ministerial act, because

he “merely journalized th[e] sentence without alteration.” Id. at ¶ 10.
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{¶4} In 2018, Harris successfully petitioned this court for a writ of

mandamus to compel the Hamilton County Clerk of Courts to produce public records

relating to the assignment of his case to Judge Nurre, the transfer of the case to visiting

Judge Schott, and the transfer of the case back to Judge Nurre. See State ex rel. Harris

v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 4 (“Harris II”).

{¶5} In 2021, Harris petitioned this court for a writ of mandamus, seeking an

order directing the Hamilton County Court of Common Pleas to vacate his sentence

and resentence him and to return funds and court costs paid. See State ex rel. Harris

v. Hamilton Cty. Clerk of Courts, 168 Ohio St.3d 99, 2022-Ohio-477, 196 N.E.3d 777,

¶ 1 (“Harris III”). The Ohio Supreme Court affirmed this court’s dismissal, explaining

that a sentence may be challenged through a collateral attack “in an extraordinary writ

action” if the sentence is void for lack of personal or subject-matter jurisdiction. Id. at

¶ 8. Because Harris challenged the exercise of jurisdiction, any alleged sentencing

error would render his sentence voidable, and sentencing errors are inappropriately

challenged in mandamus actions. Id. Therefore, the Ohio Supreme Court dismissed

his appeal. Id.

{¶6} In 2022, Harris moved to vacate his court costs and fines under R.C.

2947.23. Harris argued that Judge Schott ordered an unspecified $25,000 financial

obligation, and that Judge Nurre lacked authority to impose $25,000 in court costs

and fines. The trial court “conducted a review of the record” and denied Harris’s

motion to vacate costs and fines. It is from that denial that Harris appeals, raising six

assignments of error.

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II. Law and Analysis

A. Court Costs and Fines

{¶7} In his first assignment of error, Harris maintains that the trial court

abused its discretion when it denied his motion to vacate court costs and fines. The

record is clear that Harris was fined $25,000, the maximum amount permitted under

R.C. 2929.02(A) (“the offender may be fined an amount fixed by the court, but not

more than twenty-five thousand dollars.”). Harris was also assessed $2,335.92 in court

costs. In his motion, Harris conceded that the fine and court costs were satisfied in

1992. The record indicates the same.

{¶8} As an initial matter, we pause to emphasize the “major distinction

between fines and court costs.” Strattman v. Studt, 20 Ohio St.2d 95, 102, 253 N.E.2d

749 (1969). Court costs are “a civil debt,” and entirely separate from a criminal

sentence. State v. Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 15. By

their very nature, court costs are nonpunitive. See State v. Swift, 2d Dist. Montgomery

No. 20543, 2005-Ohio-1595, ¶ 21. Mere participation in a court proceeding triggers

court costs, which are “assessed to defray the administrative costs of litigation.”

Strattman at 102-103; See, e.g., State v. Hunter, 1st Dist. Hamilton No. C-200160,

2021-Ohio-2423, ¶ 17. In contrast, R.C. 2929.02(A) vests a trial court with the

authority to impose up to $25,000 in fines on an individual convicted of aggravated

murder as part of the criminal sentence. As part of a sentence, “fines ‘serve a punitive,

retributive, or rehabilitative purpose.’ ” State v. Housley, 2d Dist. Miami No. 2020-

CA-1, 2020-Ohio-4489, ¶ 9, quoting Strattman at 102. And so we review Harris’s

$25,000 fine “just as we would any other” criminal sentence. State v. Owens, 1st Dist.

Hamilton No. C-170413, 2018-Ohio-1853, ¶ 5.

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{¶9} Beginning with court costs, Harris’s motion to vacate court costs was

not properly before the trial court. We recognize that his motion invoked the trial

court’s continuing jurisdiction “to waive, suspend, or modify the payment of costs of

prosecution, including any costs under section 2947.231 of the Revised Code at the

time of sentencing or anytime thereafter.” R.C. 2947.23(C). But “R.C. 2947.23(C) does

not compel or even allow a trial court to order reimbursement of court costs already

paid.” State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4204, 145 N.E.3d 235, ¶ 30.

Rather, R.C. 2947.23(C) is the proper mechanism to challenge “the payment of costs

if costs remain.” (Emphasis added.) Id. In his motion, Harris acknowledged that his

court costs were satisfied in 1992. Indeed, Harris attached a copy of the docket

indicating as much. As the Ohio Supreme Court recognized in Braden, the trial court

was unable to issue an order for Harris’s reimbursement. In short, Harris’s motion to

vacate court costs was not properly before the trial court.

{¶10} Turning to Harris’s $25,000 fine, the trial court lacked jurisdiction to

consider his motion, and his arguments are barred by res judicata. In his motion

Harris asked the court to modify or vacate his fine under R.C. 2947.23(C) and argued

against recasting his motion as a petition for postconviction relief under R.C. 2953.21.

First, a trial court retains its jurisdiction under R.C. 2947.23(C) for the limited

purposes of considering whether to “waive, suspend, or modify the payment of costs

of prosecution.” The statute makes no mention of financial sanctions or fines. And

again, the law distinguishes fines from court costs. Therefore, we must treat Harris’s

motion as a request to modify or vacate part of his criminal sentence.

{¶11} To that end, we construe his motion as an untimely petition for

postconviction relief, which is the proper mechanism to ask the trial court to modify

or vacate a criminal sentence. See R.C. 2953.21(A)(1)(a). Indeed, “where a criminal
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defendant, subsequent to his or her direct appeal, files a motion seeking vacation or

correction of his or her sentence on the basis that his or her constitutional rights have

been violated, such a motion is a petition for postconviction relief as defined in R.C.

2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Harris

challenged his sentence and filed his motion after his direct appeal. While Harris

insisted that he was not alleging a violation of a constitutional right, he maintained

that Judge Nurre imposed his sentence outside of Harris’s presence. In support, Harris

relied on this court’s opinion in State v. Carpenter, 1st Dist. Hamilton No. C-950889,

1996 Ohio App. LEXIS 4434, 4 (Oct. 9, 1996). But in Carpenter, we explained that

defendants “ha[ve] a right of due process, embodied in Crim.R. 43(A), to be present

when [the defendant’s] sentence was modified.” Id. Harris’s motion is properly

understood as a petition for postconviction relief. In any event, his petition is

untimely, as it was filed outside of the 365-day deadline under R.C. 2953.21(A)(2)(a).

{¶12} Further, Harris’s contentions are barred by res judicata. Res judicata

bars a “convicted defendant from litigating a postconviction claim that was raised or

could have been raised at trial or on direct appeal.” State v. Bethel, 167 Ohio St.3d 362,

2022-Ohio-783, 192 N.E.3d 470, ¶ 17, citing State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph nine of the syllabus. The facts relevant to Harris’s claim

were established at his sentencing hearing in 1992. Harris’s claim is limited to facts

that were in the record at the time of his direct appeal.

{¶13} Yet, Harris maintains that he was unable to raise this argument on

direct appeal due to the “terrible condition” of the trial transcripts in 1992. In other

words, Harris suggests he could not have litigated this issue in the first action. In

Harris’s direct appeal, we denied him the opportunity to enter a corrected transcript

into the record. While we affirmed Harris’s conviction, we recognized in a footnote the
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“many problems with the transcript of the proceedings, including many passages that

read incoherently.” State v. Harris, 1st Dist. Hamilton Nos. C-920151 and C-920158,

7 (Feb. 25, 1994) fn. 10. And the dissent described the transcripts as “incoherent and

incomprehensible.” Id. at 25 (Doan, J., dissenting). But critically, these transcript

defects avoid the portions of the sentencing transcript relevant to this matter. At all

times, the transcript included Judge Schott’s imposition of a life sentence and

“$25,000 on both defendant[sic].” In other words, Harris could have challenged his

fine on direct appeal, but failed to do so. Therefore, res judicata prohibits Harris from

raising his claim now.

{¶14} In sum, the first assignment of error is dismissed. Because Harris’s

court costs were satisfied in 1992, the trial court lacked authority under R.C.

2947.23(C) to entertain this claim. And we recast Harris’s challenge to his $25,000

fine as an untimely petition for postconviction relief over which the trial court lacked

jurisdiction. Finally, even if the trial court had jurisdiction to hear Harris’s challenge

to his fine, his claim would be barred by res judicata.

B. Judicial Authority

{¶15} In his second assignment of error, Harris challenges Judge Hatheway’s

authority to rule on his motion. According to Harris, irregularities surrounding Judge

Hatheway’s assignment to his case deprived her of her judicial authority to enter her

order denying his motion. Harris asserts that the improper transfer of his case

constitutes a violation of his state and federal constitutional rights to due process and

equal protection under the law.

{¶16} But a direct appeal is not the proper avenue to challenge Judge

Hatheway’s authority. The power and authority of a judicial officer “cannot be

collaterally attacked” in an appeal of that judicial officer’s order. State v. Hill, 2d Dist.
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Montgomery No. 24966, 2012-Ohio-5210, ¶ 22. As such, this court may not review a

judicial officer’s exercise of her power in an appeal of an adverse judgment rendered

in the underlying action. State v. Baumgartner, 6th Dist. Ottawa No. OT-03-013,

2004-Ohio-3907, ¶ 11. Because this issue is not reviewable on direct appeal, we

overrule Harris’s second assignment of error.

C. Remaining Assignments of Error

{¶17} In his remaining assignments of error, Harris challenges a few

irregularities that have occurred in the course of this appeal.

{¶18} In his third and fourth assignments of error, Harris maintains the

Hamilton County Clerk of Courts violated his rights under the Fourteenth Amendment

to the United States Constitution and Article I, Section 16, of the Ohio Constitution.

First, he contends the clerk violated his rights by providing allegedly conflicting

deadlines for filing his appellant brief. Second, he alleges the clerk refused to file his

sentencing transcripts, in violation of his constitutional rights. But Harris invokes our

appellate jurisdiction under R.C. 2501.02(C), which limits our authority to “review,

affirm, modify, set aside, or reverse judgments or final orders of courts of record

inferior to the court of appeals within the district.” The clerk of courts is not a court of

record. And these claims raise issues that are outside the scope of the judgment of the

trial court. So, these assignments of error are not properly before this court on appeal.

{¶19} Moreover, these claims are moot. An issue is moot when the parties have

no legally cognizable interest in the outcome, or an event “ ‘renders it impossible for

the court to grant any relief’ ” to an aggrieved party. State ex rel. Gaylor, Inc. v.

Goodenow, 125 Ohio St.3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 10, quoting Miner

v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus. While Harris argues that the

scheduling ambiguities violated his rights, in August 2022 this court issued an order
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extending the deadline for Harris’s appellate brief to September 21, 2022. Harris

successfully filed his brief. And while Harris contends his rights were violated when

the clerk failed to transmit a transcript of his scheduling hearing, we confirmed in that

same order that the transcript pages requested by Harris had been delivered to this

court. In sum, that order ended the controversy and renders it impossible to grant any

relief to Harris on these claims.

{¶20} Still more, his sixth assignment of error is moot. Harris contends that

the trial court attempted to deny him his right to an appeal when it failed to order

service of its decision. But our consideration of his appeal renders this assignment of

error moot. Therefore, we dismiss his third, fourth, and sixth assignments of error.

{¶21} Finally, Harris argues that he was denied his right to equal protection

under the law as guaranteed by the Fourteenth Amendment to the United States

Constitution in his fifth assignment of error. As we understand it, Harris is raising a

class-of-one claim under the Equal Protection Clause. Harris carries a heavy burden

to show that he “ ‘has been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.’ ” Clark v.

Adult Parole Auth., 151 Ohio St.3d 522, 2017-Ohio-8391, 90 N.E.3d 909, ¶ 15, quoting

Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

Harris has failed to establish the elements of a class-of-one claim under the Equal

Protection Clause. Therefore, we overrule his fifth assignment of error.

III. Conclusion

{¶22} In sum, we dismiss Harris’s assignments of error. The trial court’s

judgment is modified to reflect a dismissal of Harris’s motion and petition for

postconviction relief. We affirm that judgment as modified.

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Judgment affirmed as modified.

CROUSE, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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